(Posted July 20, 2017) The Supreme Court today issues two new published opinions, one of which has attracted the attention of bench and bar.


Judicial discipline

Disciplinary proceedings against judges are rare, but the proceedings in JIRC v. Bumgardner especially resonated with a great many judges and lawyers. The two judges – CAV Senior Judge Duke Bumgardner and retired circuit court Judge Humes Franklin – decided to get involved in a referendum last fall over whether the Augusta County courthouse should be moved from downtown Staunton and into the County. The judges, both of whom had participated in an earlier study of the proposed move, felt that they had something of value to add to the discussion, so they joined the Augusta Citizens Coalition, spoke publicly against the move, and wrote op-ed pieces for the local paper.

This attracted the attention of JIRC, which concluded after a hearing that the judges had impermissibly engaged in political activity. That, in turn, generated an original-jurisdiction complaint in the Supreme Court.

Today the justices rule in favor of the judges. On the primary charge, that of engaging in prohibited political activities, the justices conclude that the Coalition is not a “political organization” as described in Canon 5. The Canons don’t define that phrase. While JIRC asked for a broad definition and the judges sought a narrow one, the Supreme Court today stakes out a middle ground, ruling that only conduct inappropriate to judicial office merits discipline. Since the Code authorizes judges to direct localities to repair and maintain courthouses, it’s entirely appropriate for them to make public expressions about issues surrounding courthouses, like this situation.

The Commission’s complaint also asserted violations of Canons 1 (independence and integrity of the judiciary) and 2 (avoiding appearance of impropriety). But in a ruling that’s starting to become familiar, the Supreme Court rules that JIRC’s opening brief didn’t argue these issues, so they’re waived.

The justices take up one last procedural issue. It’s a small victory for the Commission, but empty in this proceeding. The judges had filed demurrers and motions to dismiss, but those procedural vehicles aren’t available in JIRC proceedings, so the Supreme Court denies those. JIRC thus wins this battle, though the judges win the war.

Medical malpractice

Unlike other cases, in med-mal litigation, the plaintiff is almost always required to use an expert witness. By statute, she has to employ an expert to testify about the applicable standard of care and about causation. (The parties often use different experts for these two components.) In Summers v. Syptak, the Supreme Court analyzes an appeal in which the patient claimed that she didn’t need a causation expert.

The patient appeared before Dr. A in a Harrisonburg medical practice in 2010. Dr. A diagnosed post-traumatic stress disorder as a result of “past and present sexual abuse and harassment,” and prescribed several medications.

Two years later, symptoms of high blood pressure brought the patient back to the office. Dr. A was unavailable, so she saw Dr. B instead. She soon came to regret the substitution, because Dr. B – according to the complaint – “engage[d] in conduct involving unsolicited and unwanted sexual comments and innuendo” toward her.

If you think that story sounds fishy, today’s opinion notes that the patient “surreptitiously recorded some, but not all, of these remarks,” so maybe there’s something to it. In any event, the patient sued for intentional infliction of emotional distress, claiming that her PTSD symptoms had worsened after her unfortunate encounters with Dr. B.

In discovery, Dr. B asked for information about the patient’s standard-of-care and causation experts. The patient said she didn’t need one because in these circumstances, those issues were “within the range of the jury’s common knowledge and experience.”

It’s true that in some instances, you don’t need an expert. For one easy example, the justices ruled in 2008 that no expert was necessary when the malpractice was the collapse of a defective chair. Coston v. Bio-Medical Applications of Virginia, 271 Va. 1. But in this case, the justices unanimously rule today, the patient really did need an expert on the subject of causation. A jury isn’t likely to understand from its common experiences what would trigger a relapse or worsening of PTSD; you need a doctor for that. And since the patient didn’t have one at trial, the trial court properly dismissed the action.

Justice McCullough’s opinion for the court identifies the particular logical fallacy that underlay the plaintiff’s position. The Latin phrase for it is post hoc, ergo propter hoc – loosely, “after the fact, therefore because of the fact.” The patient would have asked the jury to conclude that because her symptoms worsened after her visit with Dr. B, that visit was therefore the cause. That type of “proof” doesn’t work in formal logic, and it doesn’t work at Ninth and Franklin, either.